WELCOME TO THE OFFICIAL RICHARD E GERSTEIN JUSTICE BUILDING BLOG. THIS BLOG IS DEDICATED TO JUSTICE BUILDING RUMOR, HUMOR, AND A DISCUSSION ABOUT AND BETWEEN THE JUDGES, LAWYERS AND THE DEDICATED SUPPORT STAFF, CLERKS, COURT REPORTERS, AND CORRECTIONAL OFFICERS WHO LABOR IN THE WORLD OF MIAMI'S CRIMINAL JUSTICE. THIS BLOG HAS BEEN CALLED "THE DEFINITIVE BLOG ON MIAMI CRIMINAL LAW" BY THE NY TIMES, THE WASHINGTON POST, THE POPE, AND DONALD TRUMP WHO ALSO ONCE SAID IT WAS "REALLY GREAT". POST YOUR COMMENTS, OR SEND RUMPOLE A PRIVATE EMAIL AT HOWARDROARK21@GMAIL.COM

Saturday, February 28, 2009

The comments to yesterday's post about Judge Cueto's actions at bond hearing are almost unanimous in support of Judge Cueto.

After hearing that Judge Cueto refused to lower a bond, a fifteen year old girl cursed and stormed out of the courtroom. Cueto called for the police, hit the panic button, had the family brought back into court and screamed at them and demanded they apologize.

The comments applauded Judge Cueto for not putting up with the rude behavior, and for making the girl apologize. The comments support Judge Cueto for pondering whether life in prison would be appropriate for someone who sold cocaine.

Perhaps in light of these comments we need to re-evaluate our position.?

Perhaps WE should be the one apologizing to Judge Cueto?

Rumpole replies: NEVER!

What Judge Cueto did is what we all want to do. And perhaps what Judge Cueto did is what needed to be done. Someone needs to grab this little ruffian and shake some common sense into her.

But not a Judge, in court, during a first appearance.

And this is where all the commentators are wrong. They are mistaking what someone should do, with what a Judge should do.

The Judge's primary responsibility is to review the arrest affidavit, determine probable cause, and set a fair bond.

Judge Cueto did that.

The Judge's secondary responsibility is to give an appearance of fairness to the public. When Judge Cueto reviewed the arrest affidavit and spoke with the Defendant's mother, he did that.

Where Judge Cueto failed is in his response to the girl cursing. Re-watch the video. Watch the Judge explode and shake with rage. Watch him lose all control to the extent he tries to use a panic button for a situation that does not call for all security hands to rush to the courtroom.

Is this the type of person you want sentencing someone?

What we see is the Judge's personal frustrations coming to the surface.

Does he have an agenda against gang members who deal drugs, and against snotty teenagers that have no respect for anything?

Then he needs to resign and join the state attorneys office, or go work for the SAO or the PDs in the Juvenile courts.

His job is to remain in control of his temper and control the courtroom and rule fairly.

Read the Florida Supreme Court decisions admonishing Judges who are disrespectful to the public. The Supreme Court takes very seriously how the public views the judiciary. And for good reason. When we lose respect for Judges, we have lost respect for those we have elected or appointed because we believed they were among the rare few of us to be trusted with decisions of life and death over our fellow citizens.

Judge Cueto had a responsibility not to lose his temper and to control his courtroom, even assuming that what the girl needed was a good hard lesson in civics.

In the end result what do you think would help this girl more: some middle aged guy in a robe screaming at her, or a contempt hearing in which she is ordered to perform community service at the courthouse?

If the Judge really wanted to help this girl, he would have required her to spend a week with him in bond hearings and then write a paper for school about it.

There are a million ways this judge could have imposed order in his courtroom, and helped instill some respect in this girl for our legal system.

And there was one way he could have failed in all respects, and that is the way he acted.

I stand by my previous comment- until he demonstrates an ability to control his temper, Judge Cueto needs to apologize and he needs to be removed from criminal court.

Friday, February 27, 2009

Those were the words of Judge Jose Cueto as he demanded that the police go get a distraught mother and her family, including a 15 year old juvenile, as they left court upset after Judge Cueto refused to lower the initial bond for the woman's son. (If you're tuning into the blog to read about Judge Eig calling someone a crack whore in Juvenile Court, that link is below.)

The title of the post links to the tape of the bond hearing.

In well over twenty years of practice in the REGJB we have never seen a Judge lose his temper to a distraught mother this way.

Judge Cueto needs to be removed from criminal court. He cannot control his feelings of prejudice against those charged with selling cocaine.

Jude Cueto opined that perhaps those who sell cocaine should be in prison forever. Perhaps Judge Cueto forgot, or does not know that sale of cocaine is a second degree felony, the maximum penalty for which is fifteen years in prison.

The amazing thing about this tape is that through most of the hearing Judge Cueto does an admirable job of dealing with a distraught mother. He reads her portions of the arrest affidavit so as to explain to her the evidence upon which he is basing his decision to set bond at $90,000.00.

But when the Judge refuses to lower the bond, the family leaves upset and says something that cannot be heard on the tape. Judge Cueto says his line about not taking crap, he calls for a police officer to get the family back inside, and even reaches for the emergency police liaison button.

When the family is brought back inside the courtroom Judge Cueto erupts in anger, screaming at them and demanding that they answer his question "who do you think you are" or he will throw them in jail.

A young woman tells the Judge she is 15 years old. The Judge sarcastically tells her she has a real bright future based on how she acted, and he again threatens her with jail unless she apologizes. This is a juvenile he knows he is now dealing with mind you when he makes the threat about jail.

The video ends with the Judge saying "get her out of here, I need to take a break." The police escort the woman out and the judge storms off the bench.

This judge lost his temper for which there is no excuse.

This video is so shocking in a display of a Judge who cannot keep his temper in the most mild of situations we have seen in the REGJB, they we are at a loss for words such that we can't even turn our attention to Judge Eig, who apparently called someone a "crack whore" in Juvenile Court. The Herald article is here.

Here is the point about Judge Cueto: we are supposed to be professionals. We are supposed to be trained in dealing with the emotional situations that arise on a daily if not hourly basis in criminal court. And above all others, the Judge is supposed to radiate impartiality, while controlling the courtroom and giving to all sides an impartial decision based on facts not emotion.

At this Judge Cueto failed miserably. He needs to apologize to the woman and the juvenile. He needs to be removed from criminal court until such time that he shows he is capable of handling a bond hearing without losing his temper.

Whew. When it rains it pours, even on an otherwise slow Friday afternoon.

Thursday, February 26, 2009

TWO BITS: Update: federal blog reports Federal Judges are in line to receive a 2.8 percent salary increase, ending their status as the only federal employees without a pay raise.

Before we get to the meager pickings at the 3rd DCA , here's something that's been on our minds

The NY Post ran a political cartoon a week or so ago. It showed two police officers standing over a monkey they just shot with the caption of "they'll have to find someone else to write the next stimulus bill."

Rumpole ponders: The cartoon is stupid, and offends most people for two reasons. Mentioning the stimulus bill brings the unspoken visual reference to President Obama into play. Therefore: 1) people are upset with the characterization of our first black president as a monkey, as monkeys were commonly used as racist symbols in the last two centuries. 2) A cartoon containing a reference to our president being shot touches on a heightened fear many have that our first black president has a greater risk of being the subject of an assassination attempt then say, John McCain would have if he were elected.

OK. So the cartoon was phenomenally stupid, insensitive, not funny, and really had no relevant political message. Here's the problem: says who? Says Rumpole. Says most people. And is that new standard for political speech- what most people think? This cartoonist has the habit of drawing every of our past recent presidents as monkeys, so it's not like he just started doing this for President Obama. The NAACP is putting pressure on local Fox TV affiliates. Fox is owned by Rupert Murdoch who owns the Post. As offensive as the cartoon was, doesn't any newspaperman or woman worth their weight in newsprint refuse to fire a cartoonist because the political speech was found offensive by most who viewed it?

Just a thought.

There was very little going on decision- wise at the 3rd DCA this week for criminal attorneys. Only two cases were not PCA affirmed.

In Perdomo v. State, former Judge Jorge Perez gets the "A" for effort and does not join the judicial wall of shame. In a 3.850 motion Judge Perez denied the motion, did not hold an evidentiary hearing AND DID attach portions of the record conclusively refuting that the appellant was entitled to relief. BUT (there's always a "but" when we praise a Judge on this blog, isn't there?) Judge Perez did that for count one of Perdomo's petition, and unfortunately Perdomo filed a four count petition, so back it goes for actions consistent with the opinion. But lets all give former Judge Jorge Perez a round of applause for trying his judicial best to cope with what are apparently extremely confusing and misleading instructions from appellate courts around our state.

And in De La Portilla v. State, the 3rd DCA held that you can't sentence a defendant as a violent career criminal when s/he is convicted of battery on a law enforcement officer. (yawn). Judge Thornton takes the hit on this one, but it appears entirely possible that the issue had not been resolved by the Florida Supreme Court at the time he issued the sentence, so he gets a pass from Rumpole. Rumpole refusing to take a cheap shot at a judge? Obama promised change didn't he?

And that's it criminal wise from the 3rd DCA this week. Stay tuned next week as we learn what other judges are denying 3.850 motions without attaching portions of the record.

Did you know that the Sierra Club has estimated that over the last 5 years, the amount of paper used in litigating and reporting appellate cases in which the appellate court sent the case back to the trial court because the trial court denied the motion without attaching the relevant portion of the record used approximately 10,000 trees?

Neither did we, as we just made that up, but really, what about all the waste of time, effort, paper, and attorney hours for re-doing what is simple enough to do right the first time?

UPDATE. Right now you must go to the Broward Blog and read the "THIS IS CRAP" decision by Judge Stanton Kaplan. Everything wrong with Broward is in this, including a vilification of Broward ASA Jeff "Dr. No" Marcus. Go. Right now. Go.

Monuments in parks are different from all other types of speech. The decision to place a monument, or not, is a form of government speech and thus not subject to scrutiny under the free speech clause.

Thus held the Supreme Court in Pleasant Grove City, Utah v. Summum.(The title links to the opinion.) Summum (for those few of you ignorant of Utah fringe religious groups) wanted to place a stone monument containing "the seven aphorisms of Summum" in Pioneer Park, which contains 11 other monuments, including that Constitutional firecracker, the Ten Commandments.

Justice Alito ( Motto: "Not quite Scalia, but trying.") wrote that

[T]he placement of a permanent monument in a public park is best viewed as a form of government speech and is therefore not subject to scrutiny under the Free Speech Clause.

The 10th Circuit had held for the Summums(?) but the Supreme Court unanimously reversed and the City does not have to allow the seven aphorisms (which now may become 8: "a pox on the supreme court.") monument in the park.

The case came to the Supreme Court on this novel question: is a governmental entity's acceptance of a privately donated monument governmental speech, or private speech in a public forum? The former does not allow for petition to redress a grievance on free speech grounds, while the later obviously does.

In holding for the City and finding that decision to place or not to place a monument is governmental speech, the court cited a long line of cases holding that a government is entitled to say what it wants, including George W. Bush's famous "fool me once...uh...if you fool me...in a second...ya can't trick me twice" or words to that effect.

From the opinion:

A monument, by definition, is a structure that is designed as a means of expression.When a government entity arranges for the construction of a monument, it does so because it wishes to convey some thought or instill some feeling in those who see the structure... Speakers, no matter how long-winded, eventually come to the end of their remarks; persons distributing leaflets and carrying signs at some point tire and go home; monuments, however, endure

Quick REGJB quiz: Who is the judge on the monument across the street from the front of the courthouse?

This is an opinion worth reading. Any Alito opinion that prints the words to "Imagine" by John Lennon in their entirety, is worth spending a few minutes reading.

Scalia concurred, joined by, surprise surprise, Thomas (the silent one.)I agree with the Court’s analysis of that question and join its opinion in full. But it is also obvious that from the start, the case has been litigated in the shadow of the First Amendment’s Establishment Clause...The city ought not fear that today’s victory has propelled it from the Free Speech Clause frying pan into the Establishment Clause fire. Contrary to respondent’s intimations, there are very good reasons to be confident that the park displays do not violate any part of the First Amendment. ..The city can safely exhale. Its residents and visitors can now return to enjoying Pioneer Park’s wishing well, its historic granary—and, yes, even its Ten Commandments monument—without fear that they are complicit in an establishment of religion.

Say what you want, but "Justice Nino" can turn a constitutional phrase with the best of them.

Wednesday, February 25, 2009

Our favourite Federal Blogger writes about Judge Hurley taking senior status. We echo his comments. Judge Hurley was a true Judge and gentleman and was respectful to everyone, even individuals he was sentencing. He was smart and a pleasure to try a case before. We wish him well.

Tuesday, February 24, 2009

The Dade County Bar Association is hanging a plaque today in the Miami Courthouse at 73 West Flagler apologizing for the history of segregation at the courthouse. The title of the post links to the Herald article.

As a criminal defense attorney who's been forced to sit by himself when in civil court, I think the apology is long overdue.

Seriously. There are two ways to look at this.

One group says that the sins of the fathers should not be visited upon their sons. Put another way, there is no such thing as collective guilt, only individual actions that should be punished accordingly. And we don't disagree with that sentiment at all.

But the other way to look at this is that it is less an apology than an acknowledgment of a horrible wrong. There is no justification for judging a fellow human being on anything other than " the content of their character", to borrow an oft quoted phrase from Dr. King. Lawyers led the fight to end segregation, and for that our profession has much to be proud of. Unfortunately, we fought other lawyers and judges, especially in the deep south, who held the line for segregation for as long as they could. And that was shameful.

It is important that we acknowledge our mistakes. As Americans, it is what differs us from other nations that sweep their mistakes under the rug.

So while many of us have nothing to apologize for, it is important to remember that our society does. And remembering this wrong will hopefully make sure we don't repeat it in the future.

It's not like we as a country are debating things like whether children of immigrants should be allowed in public schools, or whether immigrants should be allowed access to life saving health care. Right?

See You In Court.

PS. We just checked the Broward the Blog. And they point out that the Broward Courthouse has a statute of a governor who wanted to exile all black americans back to Africa. They named the whole damn county after him. Karma baby.

And they wonder why the lord keeps flooding their courthouse and why yesterday it caught on fire. There was even a hurricane in the last few years that blew out most of their windows. And they just don't get it up there do they?

Now this is just pure speculation mind you, but if an earthquake was ever to strike Florida, just where do you think the fault line would be?

Here's a fun way to occupy your time while waiting in line in the courthouse north of the border: If Broward was apologize for their history of segregation by renaming their county, what should the new name be?

Monday, February 23, 2009

UPDATE: Floods, now fire. One would think they're marching their way through the biblical plagues North of the Border. Check out the Broward Blog. Karma baby. Karma.

Slumdog Millionaire best picture? Not in our book.

The Herald ran a disturbing article about the "new" crisis for the treatment of the mentally ill at the Dade County Jail. The article is here. We were never told that the original crisis had ended.

Quote from the article:

The sickest of the men are housed on the ninth floor, a psychiatric wing that is often so disturbing that a former DCF secretary, Lucy Hadi, quietly cried after leaving the building two years ago.

''What I saw this morning is inhumane,'' said state Sen. Nan H. Rich, a Sunrise Democrat who is vice chairwoman of the Children, Families and Elder Affairs Committee and a long-standing mental health advocate who appeared visibly upset after the visit.

Rumpole says: Welcome to the party. Any defense attorney who has visited a client on the ninth floor (otherwise known as the precursor to hell- the link is for our robed readers) can tell you that Florida's treatment of the mentally ill is our State's biggest shame.

Judge Steve Leifman noted that Florida needs to build 19 (nineteen!!!???) new prisons in the next five years to keep up with the inmate population. Leifman also noted that with the mentally ill untreated, half return to prison based on violations associated with their illnesses. Leifman said "If we could just deal with the mental health population in prison, we would not need to build a new prison every year.''

Rumpole ponders: Lets see: spend hundreds of millions on new prisons, with fixed costs (staffing, food, maintenance, etc) for generations to come, OR spend less, and deal with the mentally ill humanely.

What do you think our politicians will do? Unfortunately we think the answer is all too obvious.

When we titled the article "they're crazy" it wasn't the inmates on the ninth floor we were talking about.

Saturday, February 21, 2009

There are wonderful comments in yesterday's post about the retirement of Messrs. Lseser, Waksman, and Gilbert. We're glad to see some newer ASAs are reading the blog. And we appreciate that many of our readers echo our sentiment that the SAO is just not losing top notch trial attorneys, but also the best teachers for the young lawyers that pass through the office.

In the front page of the local section of the Herald today is the horrible and tragic case of the man who allegedly drove impaired and struck a car killing three children and their mother. David Gilbert is representing the state. As a citizen of Miami, we feel secure that this case is in the right hands. Mr. Gilbert is experienced, and this is his forte. If justice is to be done in this case, Mr. Gilbert gives the SAO the best chance to see that it is done.

Can you imagine for a moment the backlash, and outcry that would occur is this case was mishandled by a less experienced prosecutor and the prosecution was compromised? We will admit that one of the most significant factors in our success in court is the experience or inexperience of the prosecutor we face.

TED STEVENS.

Former Alaska senator Ted Stevens was known as one of the most powerful and one of the most disagreeable senators in Washington. For decades he secured billions of extra dollars in appropriations for Alaska while bullying staff members and others. When he was indicted and later convicted and then defeated in his bid for re-election, we thought that he had finally paid his price for his hubris.

But then we read an article in the WSJ yesterday (the title of the post links to the article) and we remembered why people are presumed innocent and why even the most despised among us need vigorous representation when accused of a crime.

To summarize:

The prosecutorial team that secured the conviction has been removed by the Justice Department. The trial judge held the trial prosecutors in contempt in January 2009 for ignoring his order to turn over discovery related to a complaint filed by an FBI agent assigned to the case.

The FBI complaint was made by one of the two lead agents assigned to the case. The complaint alleged that the other lead agent- FBI agent Mary Beth Kepner had an "unspecified inappropriate relationship" with the prosecution's star witness- Bill Allen. Allen was the Alaska contractor who was originally investigated and "flipped" against Stevens.

From the article:

During the trial, Judge Sullivan had also admonished the prosecution for failing to share documents with the defense and redacting exculpatory passages from witness transcripts.

Like many of our fellow defense attorneys in the Southern District, we thought "the government is not turning over discovery as required and is hiding exculpatory material. So what else is new? Dog bites man rarely makes a headline (although when a chimp does it, watch out!).

Love him or hate him, there are serious concerns about how the Justice Department treated Senator Stevens and whether he received a fair trial.

Friday, February 20, 2009

Budget cuts are to blame. The Dade SAO now loses three top trial prosecutors who have over 100 years of combined experience.

The loss of these three prosecutors is bound to adversely affect our community. They did their job for decades, and they did it supremely well.

But lets look a little deeper. Certainly the prosecutors' office loss of three top trial lawyers may result in a rare not guilty on a serious capital case in the future. But what the Dade SAO also loses is the experience that is passed on to younger and less experienced prosecutors. When Mr. Laeser tried a case, he usually had a younger prosecutor with him. Someone who could study and learn what it takes to throughly investigate and prepare a case for trial. Mr. Laeser, Mr. Waksman and Mr. Gilbert took seriously their responsibility to train attorneys. When they leave the SAO, their knowledge and experience and ability to train younger lawyers leaves with them.

Thursday, February 19, 2009

Judge Thomas was reversed and the case remanded for discharge based on a PCA opinion which succinctly stated that there was no founded suspicion much less probable cause to justify the stop, search and seizure. The decision in Thames v. State is here.

Query: If the police conduct was so egregious, why didn't the 3rd DCA include at least a modicum of the facts, so we could use the case in subsequent proceedings? This decision has NO precedental value because nobody can tell the circumstances of the stop. Isn't precedent what our entire legal system is based on?

Compare Thames with the decision in State v. Reyes, here, in which the court affirmed the suppression of evidence obtained in a pat down search, but reversed the suppression of other evidence obtained after a valid stop. The decision lists the facts and applies the law in a way in which this case can be used again and again.

What's up 3rd DCA? Why do we get the facts in some cases but not others?

WALL OF SHAME.

Judge Marissa Tinkler Mendez joins our wall of shame for denying a Rule 3 without attaching record excerpts conclusively showing the appellant is not entitled to relief.

Wednesday, February 18, 2009

Michael Mathers, a real gentleman, gets a NOT GUILTY on all charges in a first degree murder case before Judge Jimenez. The defendant was accused of being the hitman in the killing of a federal witness who had testified against his codefendant, Fat Tony. The evidence consisted of a flipped codefendant who participated in the murder and a supposed confession to a federal prisoner serving almost 23 years on an unrelated matter.Fat Tony was convicted in December in a separate trial and is now serving a life sentence. After many years and two prior mistrials, Sally Weintraub waived death on both defendants. CONGRATULATIONS TO MICHAEL!!!!!!

Rumpole notes: It's bad enough to be serving life in prison, but who wants to be known as "fat Tony?" The reader is correct: Mr. Matters is a real gentleman, and as the results show, a top notch trial lawyer.

ROC RESULTS:

A reader writes in the comments section:

How you I do this without getting personal yet still deliver my important message?There was a mutiple defendant sex battery case. It was very defensible.Of the 5 co-defendants, 3 had the same exact defense. One of the 3, my client, passed a "Slattery" polygraph test. All were out of custody.

Of the 3 co-defendants with the same defenses and same exact issues...2 had private lawyers and they received (better term would be "earned on the merits" ) nolle prosses.

The 1 that had "regional counsel" actually PLED TO THE CHARGE two months earlier.The regional counsel was not a member of the RJG family (ie Bailey, Parke) Rather it was an unfamiliar, inexperienced face.We really did not have to move mountains to get the nolle prosse...just doing the expected job.

The defendant that pled received dismal legal advice and was screwed by his own attorney! It is a bad, current system. Some of these regional counsel are very inexperienced.

Rumpole notes: There is no excuse for bad lawyering. Period. The issue now is does the prosecutor have an affirmative obligation to seek justice and bring the defendant who pled back to court to vacate the plea and dismiss the case? The answer is maybe.

The facts of the case need to be examined very closely. It is entirely possible, despite the reader's comments that all three defendants were in the same position, that the guilty party pled guilty. Or it is possible that an injustice has been done. We hope the attorney who wrote this will speak to the prosecutor, the ROC attorney, or some other defense attorney to represent pro bono the person serving time. An experienced attorney needs to decide whether a motion to vacate or a rule 3.850 should be filed.

Want to win friends and influence people? Want to be the talk of the town, or at least the federal courthouse? Then go ask our favourite federal blogger David O Markus to be his guest blogger. David will be in a month long federal disorderly conduct case, and he is looking for a little blogging help. Take it from us, blogging can lead to fame, fortune, hot chicks, and entre' into the hottest parties on SOBE.

BREAKING NEWS. This just in- the rest of people waiting in line for court on Tuesday have now be admitted into the courthouse. Judge Slom had "no comment" on the warrants issued for these people because they were "late to court".

"Get out of bed a little earlier!!!" That's what we say. Every judge in the REGJB manages to make it to work by 11, why can't the defendants? Enough is enough. Stop coddling these miscreants.

Tuesday, February 17, 2009

UPDATE BELOW: ASA David Ranck replies to the opinion and his conduct in Chapinoff.

Once again we come to work on a Tuesday with a Monday off. And once again our clients will be faced with inhumanely long lines. Nothing turns people off to the court system then the perception that it is an unwieldily bureaucracy plagued with long lines, and staffed by clerks who do their utmost to frustrate you.

Access to our court system must mean at a minimum the ability to get into the damn building.

We know that Judges Slom and Blake have worked to "slake" this problem. (get it? Slom + Blake =Slake.)

But something tells us that if all the Judges who work in the REGJB had to wait in the same line with the rest of our citizens, that something more would be done. Perhaps the Judges would get serious about not scheduling the regular number of cases for trial on a week that starts with a Tuesday instead of a Monday. If they had to wait an hour or more to just get into the building, we think, and call us crazy if you wish, but we think something more would be done to address this problem.

ANSWER TO YESTERDAY'S QUIZ:

1) Nixon; 2) Carter; 3) Reagan; 4) Bush (41); 5) Bush (43);

6) Clinton.

DAVID RANCK ADDRESSES THE DECISION IN CHAPINOFF:

We received this email:

What I said in the Chapinoff trial was wrong and I am accountable for it. As a prosecutor who enforces consequences on those who have done wrong I accept those consequences when I have done wrong myself. Accountability is key in our system of justice and it applies to all of us, the president of the country, appellate court justices, circuit court judges, prosecutors, defense attorneys, and defendants. The opinion was of course personally humiliating. That's a consequence. But more so, I let so many people down: my colleagues both in my office and in the defense bar who have been so supportive of me in the past, and the standards of my profession. Most of all I let down the police officers who worked so hard on the case and the family of the victim because my wrong-doing has been deemed the principal reason that a convicted murderer is now free, forever. That, obviously, is the most important consequence.

Everyone who has written or spoken to me about the opinion has asked me "what the whole story is." Under the applicable system of accountability the only story deemed relevant is that written in the opinion.

Monday, February 16, 2009

Match the quote with the President. The quote is taken from an Op Ed piece each president wrote for the NY Times at some time, not necessarily during the time they were in office. Answers tomorrow. Hint: just because you can figure out the date of the quote, does not mean the president at that time wrote it.

1) If we must resort to military force to drive Saddam Hussein from Kuwait, it will not be a war about democracy. While our goal is to restore Kuwait's legitimate Government, it is hypocritical to suggest that we hope to bring democracy to Kuwait. Except for Israel, there are no democracies in the Mideast, and there will be none in the foreseeable future. The Emir of Kuwait is among the world's more benevolent dictators, but once he is back in his palace in Kuwait City, he will still be a dictator.

2) I never permitted religious services to be held in the White House. With as little publicity as possible, we worshiped at the nearest Baptist church when we were in Washington, and at Camp David the chaplain from a nearby Army base conducted private services for us and a few of the Navy families stationed there. Yet I prayed more during those four years than at any other time in my life, primarily for patience, courage and the wisdom to make good decisions. I also prayed for peace -- for ourselves and others.

3) While there has been a Federal law on the books for more than 20 years that prohibits the sale of firearms to felons, fugitives, drug addicts and the mentally ill, it has no enforcement mechanism and basically works on the honor system, with the purchaser filling out a statement that the gun dealer sticks in a drawer.

The new bill would require the handgun dealer to provide a copy of the prospective purchaser's sworn statement to local law enforcement authorities so that background checks could be made. Based upon the evidence in states that already have handgun purchase waiting periods, this bill -- on a nationwide scale -- can't help but stop thousands of illegal handgun purchases.

4) Those who think we're powerless to do anything about the ''greenhouse effect'' are forgetting about the ''White House effect.'' As President, I intend to do something about it. In my first year in office, I will convene a global conference on the environment at the White House. It will include the Soviets, the Chinese, the developing world as well as the developed. All nations will be welcome - and indeed, all nations will be needed.The agenda will be clear. We will talk about global warming. We will talk about acid rain. We will talk about saving our oceans, and preventing the loss of tropical forests. And we will act.

5) We enter the new territory of modern science, the choices will only grow more difficult. The new technologies we create -- with their potential to cure disease and relieve suffering -- may well define our age. But we will also be defined by the care and sense of self-restraint and responsibility with which we took up these new powers.

6) After vetoing two earlier versions, I signed welfare reform into law. At the time, I was widely criticized by liberals who thought the work requirements too harsh and conservatives who thought the work incentives too generous. Three members of my administration ultimately resigned in protest. Thankfully, a majority of both Democrats and Republicans voted for the bill because they thought we shouldn't be satisfied with a system that had led to intergenerational dependency.

Friday, February 13, 2009

This will cause you some misery, if you were stupid enough to do this:

Misery indeed.

What they are calling "Black Thursday" for lawyers, with over 700 lawyers and a thousand support staff being laid off at big firms, is detailed here at Above The Law in a series of posts. Holland and Knight leads the pack with 70 lawyers and 173 support staff getting the axe.

Miami is Miserable?

Forbes Magazine (motto: "We used to report on money when anyone had some") has ranked Miami, our fair city, the 9th most miserable city to live in, in the US. And to add insult to injury, we are snugly nestled in between Buffalo, NY, and St. Louis, MO.

Buffalo??? Oh the ignominy of it all.

FEAR?

If you suffer from TRISCADECAPHOBIA then perhaps you should stay home today. For those of you who failed remedial English, or wear a black robe to work, click on the word for a definition.

THE WAR ON DRUGS.

The Latin American Commission on Drugs and Democracy has reported that, steady yourselves, the US war on drugs in Latin America has been a failure. They have also hastened to point out that the sky in fact is blue. As our friends from Minnesota would say, "Tell us something we don't know, why doncha?

Someday historians are going to look back on the war on drugs over the last twenty to thirty years and total up the lost lives, the money spent, the lives wasted in warehouse incarceration, and their going to shake their heads in sad wonderment.

HELP WANTED.

Secretary. Of Commerce. Top candidate will have superior organizational skills. people skills, management skills, political skills, and should have paid most of their taxes most of the time. Must re-locate to Washington, DC. Salary set by law. Apply Here.

WEEKEND.

There's not a damned thing to watch on TV this weekend. I guess we'll have to ride our bike over to Key Biscayne.

Courts are closed on Monday in observance of the election of Joel Brown as chief judge, and that means one of those troublesome Tuesdays, with long lines, short tempers, and an over crowded courthouse. Any ideas on what kind of problems CJ Brown could address? Any ideas whatsoever?

Wednesday, February 11, 2009

UPDATE: Chief Judge vote today. High noon. 73 West Flagler street. Here's a fun game if you're an ASA or PD. Try and slow things down and keep your Judge in court for as long as possible past 11:30. Just for fun.

We're not the only one spoiling for a fight, but if you're going to fight, be warned ASA's, it could cost you a conviction. So held Judge Schwartz in Chapinoff v. State, when two mistrials caused by antics, fist-a-cuffs, and "free for alls" between ASA David Ranck and Defense Attorney Syndey Smith were enough to cause the 3rd DCA to vacate the defendant's conviction and remand for discharge on double jeopardy grounds.

From the opinion:

MR. RANCK (Assistant State Attorney): -- don’tstart --MR. SMITH: I would ask you not to interruptplease –MR. RANCK: I will ask you one more time –MR. SMITH: --I’m not going --MR. RANCK: --if you ever interrupt me --MR. SMITH: --don’t interrupt me again--MR. RANCK: --you asshole--MR. SMITH: --I will not tolerate this man--MR. RANCK: --I will not tolerate--MR. SMITH: --act like a lawyer. Act like alawyer.MR. RANCK: you act like a lawyer.MR. SMITH: I won’t take that from you.MR. RANCK: I won’t take it from you.MR. SMITH: I will not take that from you.(whereupon the Bailiff entered the room and endedthe confrontation while the Judge left thecourtroom).

And, as the decision makes clear, the 3rd DCA will not take that from either of you boys.

Had enough fight fans? Well then try this, because what takes place next is unprecedented in the annals of American Jurisprudence: battery by probocsis:

During this exchange the prosecutor had again lefthis podium, advanced to the defense podium wheredefense counsel was standing, and placed his nose incontact with trial counsel. He remained in direct face toface contact until ordered to his seat by the bailiff.Defense counsel apparently made no attempt to leave thedefense podium.

What the decision makes clear is that unprofessional misconduct by counsel, and that means all counsel- those with prominent appendages, and those without-is not sufficient to create a manifest necessity for a mistrial. And as we all know, no manifest necessity, and double jeopardy attaches.

The fault dear Brutus (and Judge Murphy), lies not in the stars but in ourselves:

It is even more obvious that the trial court fatally failed in its required dutycarefully to consider all reasonable alternatives -- including gaining control of thecourtroom -- to doing so.Be warned those who battle for their clients and those who fight for the state- the 3rd DCA is very clear on this- act up, and the remedy is a contempt hearing, not a mistrial. Those of you with prominent noses, be careful where you put them, because the opposite end of you may well end up in a sling.

PS. If you want to read why less cases go to trial, and the problems with sentencing in Federal Court, then check out the written testimony of our favourite federal blogger to the US Sentencing Commission here.

Tuesday, February 10, 2009

The Senate passed the stimulus bill on Tuesday 61-37. Now the Senate and the House have to conference to work out the differences.

Query: Which party will have the most clout in these negotiations?

If you said "the republicans" you are correct. If you said "the republicans, and more specifically the three moderate republicans in the senate that voted for the bill" you really would be correct.

You see, without Senators Snowe, Spector, and Collins, the three moderate republicans who voted for the bill, the bill could not be brought for a vote. If the House does not give these three moderate senators almost all of what they want, they withdraw their support and the bill will not get passed.

Thus we see the strange and deliberate rules of the Senate at work. House Democrats are not a happy bunch, but they can count to sixty with the best of them, and they realize they have to deal with Senators Spector, Snowe and Collins.

In watching the coverage of administration officials trying to explain the stimulus package, we get the distinct feeling that nobody is really sure what is going on, and what impact the bill will have.

As first reported on the Broward Blog here are the acquittal rates for defendants after jury trials :

July 2007-June 2007

Miami Dade: Circuit 30%; County 49%

Broward: Circuit 40%; County 75%

Orange/Osceola: Circuit 40%; County 61%

The title of the post links to the Florida State Courts Web Site (who even knew THAT existed? Wonder how much money they're spending on that?)

There's lots of fun statistics on the site that we're going to play with. Stay tuned.

TOTAL COURT FILINGS:

Total court filings for the year range from a low of 18,015 in the 16th Circuit (Monroe- but the Keys shouldn't count) and 36,942 in the 3rd Circuit (Motto: "Hey, Y'all!!!) which includes Dixie, Columbia, Suwannee, Madison, Hamilton, Lafayette, and Taylor counties, to a high of .....drum roll please: 977,788 cases in our own Miami Dade. We're number one!!! Of the 977,788 cases in the 11th Circuit, County Court constituted 836,191 cases. Lesson: stop scoffing at those practitioners in county court, they know something you don't. If you're going fishing, might as well fish in the waters that are well stocked.

Monday, February 09, 2009

The Florida Bar Board of Governors has voted 42-0 to authorize the Family Law section to file an amicus brief in the 3rd DCA in support of Miami Circuit Judge Cindy Lederman's ruling that the state's ban on adoption of children by gay couples violates the Equal Protection Clause.

Careful readers of the blog will note our new link with Channel Two's uVu. They promised a a link to our humble blog. Check out uVu.

SUPREME COURT

With the illness of Justice Ginsburg, how does that effect the widely anticipated retirements of Justices Stevens and Souter? Stevens has done a superb job, but as the bible says, there is a time for everything, and his time on the court is coming to an end. Justice Souter, who is much younger than Stevens, has never taken to Washington, DC. A nasty mugging while jogging a few years ago in DC did nothing to make his view of the Capital any better. Souter is an odd bird, and he prefers the solitude of his New Hampshire cabin to the solitude of his Supreme Court chambers. But while President Obama was widely believed to have two Supreme Court nominations to make during his first term, he may now have three. While Ginsburg has often talked about working until her mid 80's, (she is 75 now) the post surgery pathology reports will go a long way to knowing the future of her health.

Any possibility a Supreme Court nominee comes from the Florida area, including the 11th Circuit? Will anyone we know even make a short list?

RECESSION STORIES

The recession has hit everyone hard, the legal profession included. Large firms have laid off attorneys and staff. Nobody is hiring. Many of our readers are self employed or work in a small firm. The others work for the PDs or the SAO.

How has the recession affected you? If you are a PD or ASA, have you put off your plans to go private? If you're running your own firm, what strategies are you using to survive.

Who's making it? Who isn't?

One thing's for certain- that black robe some of you wear has a big red target on the back. That juicy, guaranteed salary and benefits looks mighty appealing to attorneys wondering where their next client is coming from.